Citation Nr: 0103668
Decision Date: 02/06/01 Archive Date: 02/15/01
DOCKET NO. 97-09 064 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to a rating in excess of 10 percent for service
connected disability of the neck.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. Ferrandino, Associate Counsel
INTRODUCTION
The veteran had active service from June 1966 to June 1996.
The veteran filed a claim in July 1996 for service connection
for disabilities to include degenerative joint disease. This
appeal arises from the August 1996 rating decision from the
Columbia, South Carolina Regional Office (RO) that, in part,
granted the veteran's claim for service connection for
osteoarthritis of the neck with right shoulder pain and
assigned an evaluation of 10 percent effective from July
1996. A Notice of Disagreement was filed in September 1996
and a Statement of the Case was issued in January 1997. A
substantive appeal was filed in February 1997 with a request
for a hearing at the RO before a local hearing officer. In
July 1997 it was indicated that the RO hearing scheduled in
July 1997 was canceled by the veteran.
This case was remanded in August 1999 for further
development. The case was thereafter returned to the Board.
REMAND
In reviewing the evidence in the claims folder, the
undersigned notes that the VA orthopedic examination and
neurological examination conducted in April 2000 are
inadequate for rating purposes. The findings of the
examinations are contradictory in the description of the
veteran's current level of disability regarding pain and
functional loss associated with the service connected neck
disability, and the veteran reported in a September 2000
statement that the examinations were insufficient. Further,
additional testing, including an EMG, may be required to
fully evaluate the veteran's current level of disability.
Therefore, new VA orthopedic and neurological examinations
should be provided.
The new orthopedic examination should address the
requirements of DeLuca v. Brown, 8 Vet. App. 202 (1995). In
DeLuca, the United States Court of Appeals for Veterans
Claims (known as the United States Court of Veterans Appeals
prior to March 1, 1999) held that in evaluating a service-
connected joint, functional loss due to pain under 38 C.F.R.
§ 4.40 and functional loss due to weakness, fatigability,
incoordination or pain on movement under 38 C.F.R. § 4.45
must be addressed. When addressing such functional loss, the
provisions of VAOPGCPREC 36-97 (December 1997) must be taken
into account. This opinion provides that Diagnostic Code
(DC) 5293, intervertebral disc syndrome (IDS), involves loss
of range of motion and that 38 C.F.R. §§ 4.40 and 4.45 must
be considered when a disability is evaluated under this
diagnostic code. Therefore, it must be additionally be
determined whether a higher rating is warranted under DC 5293
based on functional loss.
Additionally, there is an indication on a September 1999 VA
outpatient treatment record that the veteran has had
treatment from a private provider. Records from this
provider should be obtained, as well as any treatment records
not already of record from the Charleston, South Carolina VA
Medical Center or from any other VA Medical Center if so
indicated by the veteran.
The VA has a duty to assist the veteran in the development of
facts pertaining to his claim. This includes obtaining
relevant private and VA medical records and providing the
veteran with VA examinations, where, as in this case, such
examinations may substantiate entitlement to the benefit
sought. See Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, 114 Stat. 2096 (2000) for the specific
requirements for developing claims.
Under the circumstances of this case, further development is
necessary. Accordingly, the case is REMANDED to the RO for
the following actions:
1. The RO should obtain the names and
addresses of all medical care providers
who have treated the veteran for a neck
disability since service. After securing
the necessary releases, the RO should
obtain all records that have not already
been obtained and associate them with the
claims file. The records requested
should include those from any private
provider, the Charleston, South Carolina
VA Medical Center, and any other VA
Medical Center if so indicated by the
veteran.
2. Following completion of the above
action, the veteran should be afforded a
VA orthopedic examination and a VA
neurological examination to determine the
current severity of the service connected
neck disability. The claims folder must
be made available to the examiners for
review prior to the examinations. All
necessary diagnostic testing should be
done to determine the full extent of all
disability present. All disability
should be evaluated in relation to its
history with emphasis on the limitation
of activity and functional loss due to
pain imposed by the disability at issue
in light of the whole recorded history.
If an examiner is unable to make any
determination requested, it should be so
indicated on the record. The factors
upon which any medical opinion is based
should be explained.
The orthopedic examiner should be asked
to address the following questions. (The
answers should be numbered to correspond
to the questions posed.)
I. The ranges of motion of the
veteran's neck and the normal ranges
of motion.
II. Whether there is any pain,
weakened movement, excess
fatigability, or incoordination on
movement, and whether there is
likely to be additional range of
motion loss of the service connected
neck disability, due to any of the
following: (1) pain on use,
including flare ups; (2) weakened
movement; (3) excess fatigability;
or (4) incoordination. The above
determinations must, if feasible, be
expressed in terms of the degree of
additional range of motion loss or
ankylosis (specify whether favorable
or unfavorable) due to pain on use
or during flare ups under § 4.45.
In addition, the determinations
requested should be made for the
time period since service connection
was granted. If the degree of
functional disability has varied
during this time period, the
examiner should so note and discuss
relevant disability periods
separately.
III. Any diagnostic testing deemed
necessary by the examiner to
determine the correct diagnosis of
the service connected neck
disability as well as to evaluate
the currently level of disability,
including x-rays, should be
performed. If such diagnostic
testing is not done, the rationale
should be provided.
The neurological examiner should describe
any neurological manifestations referable
to the service connected neck disability.
The discussion must include notation as
to whether the veteran has symptoms
compatible with neuropathy;
characteristic pain; demonstrable muscle
spasm; or other neurological findings
appropriate to the site of any diseased
disc. If attacks of intervertebral disc
syndrome are present, the examiner should
note whether the attacks are recurrent,
whether there is intermittent relief, or
whether there is little intermittent
relief. All factors upon which any
medical opinion is based must be set
forth for the record.
Additionally, if there is any cervical
nerve root impairment, the neurological
examiner should indicate the nerve group
affected and the associated affected body
parts, and indicate whether there is
paralysis of same, and if so, if it is
complete with either adduction,
abduction, and rotation of the arm, elbow
and wrist lost or severely affected; or
all intrinsic muscles of the hand and
some or all of the flexors of the wrist
and fingers paralyzed; or if there is any
incomplete paralysis and if it is severe,
moderate, or mild. The examiner should
also note whether there is any limitation
of shoulder motion on either side; and if
so, is it at least as likely as not
attributable to the service connected
neck disability. If so, besides actual
loss of range of motion, the examiner
should address functional loss. In this
regard, the examiner should note whether
there is any pain, weakened movement,
excess fatigability, or incoordination on
shoulder movement, and whether there is
likely to be additional range of motion
loss of motion of the affected shoulder
or shoulders due to any of the following:
(1) pain on use, including flare ups; (2)
weakened movement; (3) excess
fatigability; or (4) incoordination. The
above determinations must, if feasible,
be expressed in terms of the degree of
additional range of motion loss or
ankylosis (specify whether favorable or
unfavorable) due to pain on use or during
flare ups under § 4.45.
Any diagnostic testing deemed necessary
by the examiner to determine the correct
diagnosis of the service connected neck
disability as well as to evaluate the
currently level of disability, including
an EMG, should be performed. If such
diagnostic testing is not done, the
rationale should be provided.
3. The RO must review the claims file
and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096
(2000) is completed. In particular, the
RO should ensure that the new
notification requirements and development
procedures contained in sections 3 and 4
of the Act (to be codified as amended at
38 U.S.C. §§ 5102, 5103, 5103A, and 5107)
are fully complied with and satisfied.
For further guidance on the processing of
this case in light of the changes in the
law, the RO should refer to appropriate
VBA Fast Letters.
4. After completion of the requested
development, the RO should review the
veteran's claims on the basis of all the
evidence of record. If the action taken
remains adverse to the veteran, he and
his representative should be furnished a
Supplemental Statement of the Case.
Consideration should be given to the
recent case of Fenderson v. West, 12 Vet.
App. 119 (1999). Therein, the Court held
that, with regard to initial ratings
following the grant of service
connection, separate ratings can be
assigned for separate periods of time
based on the facts found-a practice
known as "staged" ratings. If the
veteran fails to appear for the scheduled
examinations, the RO should apply the
provisions of 38 C.F.R. § 3.655 and
include a copy of the notification
letters in the claims file showing the
date of the examinations and the address
to which notification was sent. The
veteran and his representative should
then be afforded an opportunity to
respond.
Thereafter, the case should be returned to the Board, if in
order. The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded to the regional office. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Iris S. Sherman
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).